81 I acknowledge that the standard I have set is a broad one. Given the nature of the
evidentiary record before this Court, however, it would not be appropriate to elaborate it in any
detail. Some guidance can be provided, however (and I stress that it is guidance -- not
authoritative pronouncement), by the experience in the United States under the Rehabilitation Act,
29 U.S.C. § 794 (1997), and the Americans with Disabilities Act, 42 U.S.C. §§ 12182-12189
(1997). Regulations enacted pursuant to those statutes require health care providers to supply
appropriate auxiliary aids and services, including qualified sign language interpreters, to ensure
"effective communication" with deaf persons; Code of Federal Regulations, 45 C.F.R. § 84.52(c)
(1997); 28 C.F.R. § 36.303(b) and (c) (1997). While the term "effective communication" is not
defined in the legislation, it has been held to mean that a deaf individual "actually understood" the
content of the communication; see Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988), at pp. 563-64.
One would suppose that it would also entail that deaf persons be able to inform medical staff of
the basic circumstances surrounding their illness or injury; see Elizabeth E. Chilton, "Ensuring
Effective Communication: The Duty of Health Care Providers to Supply Sign Language
Interpreters for Deaf Patients" (1996), 47 Hastings L.J. 871, at p. 883.
82 This is not to say that sign language interpretation will have to be provided in every medical
situation. The "effective communication" standard is a flexible one, and will take into
consideration such factors as the complexity and importance of the information to be
communicated, the context in which the communications will take place and the number of people
involved; see 28 C.F.R. § 35.160 (1997). For deaf persons with limited literacy skills, however, it
is probably fair to surmise that sign language interpretation will be required in most cases; see
Chilton, at p. 886, and the many studies there cited.
83 Finally, I note that it is not in strictness necessary to decide whether, according to this
standard, the appellants' s. 15(1) rights were breached. This Court has held that if claimants
prove that the equality rights of members of the group to which they belong have been infringed,
they need not establish a violation of their own particular rights. In Egan, supra, the government
contended that, given the net benefit available to them pursuant to other legislation, a
homosexual couple was not negatively affected by the denial of a spousal allowance under the
Old Age Security Act, R.S.C., 1985, c. O-9. In rejecting this submission, I commented as follows,
at para. 12:
. . . the respondent contends that the appellants have suffered no prejudice. . . . I would simply
dispose of this argument on the ground that, while this may be true in this specific instance, there
is nothing to show that this is generally the case with homosexual couples, which is the point the
respondent must establish.
Similarly, Cory J. stated in Egan, at para. 153, that the "appellants must demonstrate that
homosexual couples in general are denied equal benefit of the law, not that they themselves are
suffering a particular or unique denial of a benefit" (emphasis in original). That being said, it is fair
to say that the absence of a publicly funded sign language interpretation service discriminated
against the appellants by denying them the equal benefit of the British Columbia health care
system. The evidence at trial established that, generally speaking, the quality of care received by
the appellants was inferior to that available to hearing persons.
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